Fennell v. State

32 Tex. 378

• Court: Texas Supreme Court
• Decided: July 1, 1869
• Status: Published

Opinion

Lindsay, J.

This was an indictment, as if at the common law, for the crime of sodomy. A motion was made in the court below to quash the indictment. The motion was overruled by the court, and this is assigned as error.

The third article of the general provisions of the Criminal Code, Paschal’s Digest, Art. 1605, declares that, “in order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission as a penal oifense, unless the same is expressly defined and the penalty affixed by the mitten law of this State.” Art. 2033, of the same Code, says: “ If any person shall commit, with mankind or beast, abominable and detestable crime against nature, he shall be deemed guilty of sodomy, and, on conviction thereof, he shall be punished by confinement in the penitentiary for not less than five nor more than fifteen years.” Flow, we conceive that this latter article is no definition of the common law crime of sodomy. It is not defined by our statute what “ the abominable and detestable crime against nature ” is. To ascertain what it is, we have to appeal to the unwritten or common law. To do so, we shall be compelled to act in contravention of the expressed object of the Criminal Code. The crime against nature is wholly undefined by the Criminal Code, and, therefore, according to its express injunction, is not punishable. There are various crimes defined in the Code which are crimes against nature. But they would not be punishable by our law but for their being defined by the Code. The judgment of the court below is therefore reversed and the case dismissed.

Reversed and dismissed.

We can not concur in the reasons nor the judgment rendered in the above cause.

Caldwell,

Hamilton.